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Objectivity in Science and Law a Shared Rescue Strategy View metadata, citation and similar papers at core.ac.uk brought to you by CORE provided by University of Essex Research Repository International Journal of Law and Psychiatry 64 (2019) 60–70 Contents lists available at ScienceDirect International Journal of Law and Psychiatry journal homepage: www.elsevier.com/locate/ijlawpsy Objectivity in science and law: A shared rescue strategy T ⁎ Matthew Burcha, , Katherine Furmanb a University of Essex, School of Philosophy and Art History, Wivenhoe Park, Colchester CO4 3SQ, United Kingdom b University College Cork, Department of Philosophy, College Road, Cork, Ireland ARTICLE INFO ABSTRACT Keywords: The ideal of objectivity is in crisis in science and the law, and yet it continues to do important work in both Objectivity practices. This article describes that crisis and develops a shared rescue strategy for objectivity in both domains. Science In a recent article, Inkeri Koskinen (2018) attempts to bring unity to the fragmented discourse on objectivity in Law the philosophy of science with a risk account of objectivity. To put it simply, she argues that we call practi- Psychiatry tioners, processes, and products of science objective when they identify and manage certain important epistemic Epistemic risk risks. We endorse this view and attempt to tailor Koskinen's strategy to the problem of objectivity in the legal Phronetic risk context. To do so, we develop a novel notion of phronetic risk, and argue that we call practitioners, processes, and products of law objective when they identify and manage certain important epistemic and/or phronetic risks. Our attempt to rescue objectivity is especially important for work at the intersection of law and psychiatry. For that intersection represents a place where skeptical worries about objectivity in science and law work in tandem to pose serious critical challenges to contemporary practice; and our rescue strategy represents a pro- mising way to negotiate those challenges. 1. Introduction specialties” (Pies, 2007, p. 20). Concerns over objectivity in psychiatry thus pose two main questions: 1) is there such a thing as objective Objectivity is a central concern for many of the issues at stake in this psychiatric disorder out there in the world; 2) if objective psychiatric journal; the intersection of law and psychiatry is a place where skeptical disorder exists, can we objectively identify and measure it? worries about objectivity in science and law work in tandem to pose A similar back and forth plays out in the relevant legal discourse. serious critical challenges to contemporary practice. For instance, The Committee on the Rights of Persons with Disabilities echoes the concerns about the scientific objectivity of psychiatry abound in the critics of psychiatry in its General Comment No 1 (UN Committee on the literature on mental disorders. Skeptics treat the term “mental disorder” Rights of Persons with Disabilities, 2014), when they claim, “Mental as a purely evaluative term designed to justify medical intervention capacity is not, as is commonly presented, an objective, scientific and (Szasz, 1974); skeptics and non-skeptics alike point out that the diag- naturally occurring phenomenon (par. 14).” Moreover, many disability nosis of mental disorders sometimes serves as a social tool of oppression rights advocates argue that mental health law fails to be objective in that stigmatizes perfectly healthy but aneurotypical people (Eysenck, that it reflects blatant bias against persons with intellectual andpsy- Wakefield, and Friedman, 1983); and non-skeptics who hold that chosocial disabilities (Harpur, 2009), arguing that the law takes cover mental disorders have an underlying physiological basis still insist that behind the rhetoric of objectivity, while it stigmatizes and imposes the concept has an ineliminable value component (Wakefield, 1992). “ableist” norms on persons with intellectual and psychosocial dis- Moreover, this evaluative dimension of the concept of mental disorder abilities. But this skeptical viewpoint does not predominate. The Eur- drives worries that the field of psychiatry is just not as objective as opean Court of Human Rights, for instance, specifies that the lawful other areas of medicine. On the other side of this debate, however, deprivation of a person's liberty on the grounds that she is of “unsound defenders of psychiatry's objectivity point out that it operates within mind” must be based on “objective medical expertise” and “objective the scientific medical model (Shah & Mountain, 2007), and they argue medical evidence” (European Court of Human Rights, 2012 par. 103, that if we take interrater reliability as a measure of objectivity, “psy- emphasis added). Far from an idle theoretical question, then, objec- chiatric diagnosis is often as objective as that in most other medical tivity is a central concern for contemporary public policy challenges at ⁎ Corresponding author at: London School of Economics and Political Science, Centre for Philosophy of Natural and Social Science, Houghton St., London WC2 2AE, UK. E-mail addresses: [email protected] (M. Burch), [email protected] (K. Furman). https://doi.org/10.1016/j.ijlp.2019.02.004 Received 17 October 2018; Received in revised form 12 February 2019; Accepted 20 February 2019 0160-2527/ © 2019 Published by Elsevier Ltd. M. Burch and K. Furman International Journal of Law and Psychiatry 64 (2019) 60–70 the intersection of psychiatry and the law. of objectivity in science and apply it to the law. Koskinen argues that we Unfortunately, the concept of objectivity is in a crisis in science and call practitioners, processes, and products of science objective – and so the law. In both domains, the term is multiply ambiguous, referring to we trust them and believe that they warrant our trust – when they practitioners, processes, and products. In the scientific context, Heather identify and manage certain important epistemic risks. This unifies the Douglas (2004) has identified eight distinct meanings of process ‘ob- fragmented discourse on objectivity in the philosophy of science under jectivity’ alone, none of which is reducible to any other. And re- the heading of epistemic risk management, and thus resolves the am- searchers at the Essex Autonomy Project have identified at least six biguity that provides some of the fuel for deflationary responses. We distinct and mutually irreducible notions of objectivity in the law.1 endorse Koskinen's view and attempt to tailor it to the issues at stake in This ambiguity has provoked searing deflationary critiques in both the legal context. To do so, we develop a novel notion of phronetic risk, domains. To take a prominent example from the philosophy of science, and argue that we call practitioners, processes, and products of law Ian Hacking (2015) argues that objectivity is a useless “elevator con- objective when they identify and manage certain important epistemic cept” – by which he means a high-level philosophical concept, rather and/or phronetic risks. Our hope is that this will likewise bring unity to than a grounded one used by practitioners – and that we should stop an otherwise fragmented discourse, and, ultimately, help resolve the talking about it. To do worthwhile work on issues traditionally dis- kinds of disputes we mentioned at the outset. cussed under the heading of objectivity, he contends, philosophers should do ground-level analysis that targets the specific epistemic 2. Koskinen's epistemic risk account ‘vices’ that afflict researchers in their everyday practice, such asbiasor the corrupting influence of funding from interested third parties. The ideal of objectivity has an ontological and epistemological as- In the law, deflationary critiques have been even harsher. Catharine pect. The ontological aspect is concerned with the objective world, the MacKinnon (1991), for instance, argues that “objectivity” has long world as it is unmarred by subjective distortions—an “absolute con- served as a legal tool of oppression, because its lack of specific content ception” of reality (Williams, 1985) grasped, so to speak, from a God's allowed it to be co-opted as a stand-in for white male values. On her eye view, or “a view from nowhere” (Nagel, 1986). The epistemological view, objectivity not only lacks cognitive content, but it functions as an aspect, on the other hand, deals with the normative standards that instrument of injustice. govern our efforts to know the world. Despite these forceful deflationary critiques, the concept of objec- In keeping with a trend in recent philosophy of science to view tivity continues to do important work in scientific and legal practice. In science as a practice carried out by imperfect human agents for the sake science, we rely on a division of epistemic labour, and objectivity al- of human ends and interests, much recent work on the ideal of objec- lows that practice to persist. No one person can know everything, so we tivity sets the ontological aspect of objectivity aside. When you see divide the epistemic tasks between us (Kitcher, 2011, pp. 21–22; science as a practice organized around the interests of imperfect human Goldberg, 2011). To maintain this division of epistemic work, we need agents, the notion of “carving the mind-independent world at its mind- to trust that individual knowers and knowledge-production groups have independent joints” starts to look overly ambitious (Elgin, 2017, p. done their tasks well, and that we can trust their results. Objectivity is 151). Setting the ontological question aside, this recent work focuses the endorsement that we can trust the knowledge produced by others instead on constructing an epistemically normative ideal of objectivity (Grasswick, 2010; Schemann, 2011) and thus allows us to continue this via an analysis of the various ways actual scientists use the term “ob- vital social practice. Scheman (2011) and Grasswick (2010) speak of jectivity” in practice. We draw inspiration from Koskinen's (2018) im- larger audiences in the same terms: laypeople should be able to trust the portant work in this vein.
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